1. Pagans against the Old Testament  Pieter van der Horst, Aeon
  2. Isn’t every crime a hate crime? Charles Moore, Spectator
  3. How nation-states secure freedom Samuel Gregg, Law & Liberty
  4. Consent versus obedience: law and legitimacy Irfan Khawaja, Policy of Truth


  1. Victor Hugo’s surreal, forgotten art Andrew Hussey, 1843
  2. Was Roosevelt’s “Europe First” Policy A Mistake? Salvatore Babones, Asian Review of Books
  3. Your God is Our God Elliot Kaufman, Claremont Review of Books
  4. The Seduction of the Gun Matt Lewis, Los Angeles Review of Books

A short note on the riots in Jerusalem

Big, violent riots in Jerusalem (July 22-23 2017). Last week, three Arabs Muslims with Israeli nationality killed two Israeli policemen in Jerusalem. Reminder: All of Jerusalem is under the control of Israel, has been since 1967. Before that, under Jordanian rule, Jews were banned from the Old City. The broader city today has a diverse population that includes Jewish Israelis, Muslim Israelis, a few Christian Israelis, Palestinian Muslims, a handful of Palestinian Christians, plus a constant flow of visitors from abroad. In addition, most Palestinians from the adjacent West Bank are allowed to visit on a controlled basis, for religious purposes only.

Israel gained control of Jerusalem in 1967 the same way the Muslims did in the seventh century: Military conquest legitimized by Sacred Scriptures.

As we all know, Jerusalem is a sacred city to several religions including Judaism, Christianity and Islam (by order of historical appearance). At the center of the preoccupations of the three monotheistic religions is a place called the Temple Mount. It’s the spot known as the last Jewish temple, destroyed by the Romans in 70 AD (or “Common Era”). The supposed last vestige of the Jewish Temple standing is the Western Wall (also, “Wall of Lamentations” for Jews) where Jews from everywhere, including Israel come to pray. The Christian Gospels show Jesus visiting the same temple several times including shortly before his crucifixion. Muslims revere the area because the Prophet Muhammad is said to have started there his whirlwind “Night Visit” to Heaven. It’s so important to Muslims that they built there not one but two mosques after they conquered the city in 630. One of the two mosques, the Dome of the Rock, is supposed to have been established over the place where Abraham sacrificed his son (one of his sons, not the same son, depending on which religious tradition).

Now, Jews are forbidden by Israeli law as a well as by some rabbinical religious decisions to visit the area occupied by the mosques. It is administered jointly by a Muslim clerical organization and by Jordan (Reminder: Jordan is an Arab country with a peace treaty with Israel.) Two consequences. First, frictions between Jewish worshipers and Muslim worshipers in the area are rare although they pray within a stone throw of each other. (Metaphor not chose at random.) Second, the top of the Temple Mount, the largest part of the area where the two mosques stand, is very seldom visited by Jews at all. It’s overwhelmingly used by Muslims, day in and day out. Repeating: If you threw a stone in the air on an average day while standing in that area, it would fall down on a Muslim or on no one at all. (Christians seem to not be much interested in visiting that particular spot.)

Following the assassination of two of its policemen last week, Israel took common sense security measures against repeated acts of terrorism in the Temple Mount mosques area. By the way, the two Israeli policemen assassinated were not Jews. They were Druze, people whom some Muslims consider Muslim and many not. No one, at any rate, thinks Druze are Jewish. The fact is that the assassinated police officers were working security in or near an area frequented by devout Muslims, rather that one of the many more numerous Israeli Jewish policemen (or worse, policewomen). This suggests to me that official Israeli policy was reasonably alert to Muslim faithful’s sensitivities.

The Israeli authorities took two new security measures (amazingly late in the game, if you consider the volatility of the area). They installed both surveillance cameras and metal detectors on the access points to the mosques esplanade. That’s was precipitated the rioting and yet more deaths, plus, the formal declaration of the Palestinian Authority that it was stopping all contacts with Israel (of which, more later). Now, I can sort of understand the Palestinians’ objection to the cameras. Many must imagine that Israel will use the film to spy on them further although it’s difficult to see how or what that would accomplish beside identifying criminals after the fact. The metal detectors are the same tools in place in almost every airport in the world. They can help intercept guns and knives.

Refer back up to the description of who spends time in the mosques area: Muslims. So here you have it: Palestinians, who have to be almost all Muslims, are rioting violently to protest security measures that will protect…Muslims. What serves as their government, the Palestinian Authority, cuts off contact with Israel also in protest. But Israel acts as a customs office for the said Authority. It collects monies on its behalf and faithfully hands them over. Palestinians protest common sense Israeli action that protect them by making it even more difficult for their government to do its job. By doing so, they create more of a vacuum, that Israel will, of necessity, have to fill.

Some Palestinian leaders think that if they force others to shed Palestinian blood very publicly, the world is going to take pity and come and impose the kind of settlement they want. The calculus is going on seventy years old. If you keep doing the same thing over and over again and it never works….

A personal note. I have had several Palestinian friends; they were easy to like for their warmth, for their courtesy, for their generosity. That’s on the one hand. I also think Palestinians are victims of history; that they have been paying for seventy years for the crimes of others. On the other hand, I have not much appreciated the Israelis I have known. They tend to have the smoothness of raw alligator skin, pretty much what you would expect of people reared in a garrison state. Politically, however, it’s very hard to be a friend of Palestinians. You try  and try, and then, they go and do something insane like this.

In case you wonder: I am not Jewish, never have been. I was raised a Catholic and I have been religiously indifferent as far back as I remember. I know my Bible pretty well (Old and New Testament). I try to study the Koran. It’s tough going because I am usually told that the translation I can understand is not legitimate. I am familiar with the Hadith second-hand (like most Muslims actually because few know Arabic).  I listen to Tariq Ramadan, a cleric or a philosopher connected to the Muslim brotherhood who speaks beautiful French and who seems to have made it his mission to explain Islam to intelligent and educated infidels. (That would be me, for example.)

Some thoughts on moral duties

I came across a blog post while browsing through Reddit’s philosophy subforum* concerning Adam Smith’s theory of duties. As the writer says,

“According to Smith, you know an act is right when an impartial spectator would sympathize (or empathize) with the emotions motivating your act. Smith says that an impartial spectator will always empathize with both the kindness of someone who acts to benefit others and with the gratitude of the recipients of that kindness.”

Obviously there are problems with this if you believe, as I do, that judgments do not proceed from one universal reason or emotional basis common to all, but that reason and emotional responsa are conditioned by time, place, upbringing, and so forth. If I were to give a homeless man one dollar on the street, an impartial observer might see that action, deduce that I did it out of sympathy for the plight of the man, and empathize with my sympathy. Another impartial observer might scorn my action as naive weakness, and not see it as beneficent. There is also the question if emotions are spontaneous upsurges of feeling (nonrational reactions) or judgments (which are dependent on rational thought), and then, whether there is such a thing as an impartial observer at all.

But I feel that I am digressing now, for the universalism of Smith’s doctrine is not important compared to whether it is applicable in a given situation. Most commonsensical ideas of beneficence converge on certain actions, such as charity, because despite superficial differences in evaluations of moral actions, there is always an underlying universal idea that is instantiated in different forms. The cynic may find my charity stupid, but he does not necessarily reject the idea of charity in general, only this specific application. Most people will, in fact, sympathize with an act that is truly worthy of sympathy.

As Smith bases his moral calculus on sympathy, he believes that all acts which elicit sympathy – that is, beneficent acts – are morally right. The author of the blog piece then inquires: “Does it follow that acts of beneficence are moral duties?”

This is an important distinction. An action may be beneficent, but it does not follow that it is also a duty to do it. For example, if I believe that my act of charity is beneficent, and beneficence is morally right, then it follows that it is morally right for me to do it. However, I do not have to do it, as the homeless man is not entitled to my charity, as I am free to dispose of my private property as I choose, whether in something morally correct (charity) or morally indifferent (buying that exquisite panini from the shop down the street). If the case were opposite, that every act of beneficence is also a moral duty, then it would be impossible to live oneself. Each moral agent would be required to give charity to every homeless man, to donate to every worthy cause, to spend one’s entire time devoted to bettering the lives of others – something that is obviously ridiculous, save for thinkers like Peter Singer, who believe in the absolute maximization of utility.

But something that is beneficent may also be required. It is beneficent for me to give a man who is starving to death food, as most impartial observers will agree, but it is also morally required that I do so: if I do not, he will die, and I was the only person capable of saving him from death. Why is the former not necessary, but the latter is? Both cases are of positive action, but in the former case, the homeless man is not dependent on me to help him. His situation is only marginally different whether I act or not, and he will continue to exist irrespective of my choice. In the latter case, giving charity means the difference between a clear moral good (a person lives) and a clear moral bad (a person dies). The starving man is entirely dependent on me to keep him alive, and the mere fact that a human being is dependent on me gives me a moral duty to help him.

What this ultimately points to is an underlying moral order that one must appeal to in order to make sound moral judgments. There is a distinction between something that is morally right but not morally necessary, and things that are right and necessary. This is the division between imperfect duties, which are good to do but are not owed to anyone in particular, and perfect duties, which are absolutely good and owed to everyone. However, the next question follows: where does the division lie?

The author gives the following thought experiments:

  1. A friend that brings you coffee in the morning
  2. Shipwrecked sailors on your private property
  3. A dying man at your oasis
  4. Stealing to save humanity

And then he analyzes each in terms of Smith’s own moral basis. I will only look at the first two for the sake of brevity.

1. Here, “a friend usually brings you coffee in the morning. If he fails to bring you coffee one morning, are you justified in resenting him? Has he acted immorally?”

The author and I both agree that resenting him is unjustified. You have come to expect receiving coffee in the morning, but an expectation of beneficence from your friend does not make a moral claim on him. He is, at all times, free to dispose of his private property in any way he sees fit. At best, you can consider him rude, especially if he stops his habitual action abruptly and without explanation, but rudeness does not necessarily have a moral component (I refer you to my post on an ethics of offense).

By Smith’s logic, you are also not justified, because an impartial observer would see your indignation as nothing more than a hissy fit. Furthermore, “an impartial spectator would never want to force someone to be kind,” because an act of beneficence done out of resentment isn’t really beneficent at all according to Smith’s logic, because it does not have the underlying emotive force. A consequentialist would view it as beneficent because the result is good, but this lacks the nuance of the situation: a man who accidentally shoots and kills his neighbor while cleaning his loaded gun is different from the man who breaks into his neighbor’s house and shoots him in cold blood, as most people of sense realize.

2. “Let’s say I own some beachfront property. One day a ship wrecks offshore in a storm, and the exhausted voyagers crawl ashore on my beach. Do I have the right to expel them from my property back into the ocean, presumably to die?”

This seems to be the same case as the first, because it deals with the disposal of one’s private property. However, in the first case, there was no duty for my friend to bring me coffee. It would be an act of beneficence, sure, but I am not entitled to his beneficence. In this case, the dependence of the shipwrecked sailors on my beneficence gives me a perfect duty towards them. Because they depend on me to save them, I must save them.

This is in accordance with Smith’s logic, for an impartial bystander would not sympathize with my selfish use of my private property, but with the poor sailors, who I am condemning to death. What this really illustrates though is the limits of an ethic based on beneficence (if Smith actually based his ethics on appraisals of beneficence, which I am not sure of as I have not read his work). Emotional appraisals of action are, as I have outlined, often relative to specific individuals, and always conditioned by one’s previous experiences.

When the shipwrecked sailors come to your beach, you may feel annoyance instead of beneficence, but you help them anyway. An impartial observer might notice the scowl on your face and deduce your mental state, so whither the basis for the judgment of the action as morally correct? How can one sympathize with an emotion when there is no emotion to sympathize with? Again, “an impartial spectator would never want to force someone to be kind,” but at the same time, he would also find it wrong to expel the sailors. This is because the action goes beyond beneficence, which may or may not be a duty, to justice, which is absolutely good and is always a duty.

I once had a discussion with a woman over the Jewish versus (Protestant) Christian views on following the word of God. She held that one had to cleave to the love of Jesus, and if one did not feel complete love for his word and what he wanted you to do, what is the point in doing it? I held that love and emotions fade, and if all you have is fervor to sustain you, you will inevitably fall off the path. There must be a sense of duty, no matter your feelings on the matter at hand. God commands, and you follow, not because He loves you or you love Him, but because the relationship between God and man, like soldier and officer, demands obedience.

What obedience really is in this case, is a trade-off between one’s absolute freedom to do as one likes (the negative right of non-interference), and another person’s positive right to exist. When one’s negative right to non-interference conflicts with another’s positive right to live, I think morality demands that we yield to that positive right. This may lead to a slippery slope, as the ever-proliferating list of positive rights, such as healthcare, a “living wage,” and other such progressive inventions have shown. However, within the right to live there is a clear distinction between the right to survive, and the right to thrive. It is a perfect duty to defer to someone’s right to survive, even if it demands usage of your private property, but it is not a perfect duty to provide for others so that they may thrive – you are required to give the starving food, but not the poor healthcare, for example. Thus, this right to another’s property is contingent on immediacy and dire need.

Furthermore, though a person may have a right to another’s property in dire need, he does not have a right to obtain it by force: the shipwrecked sailors may petition me for usage of my beach, and I also may refuse. I have committed a moral wrong by sending them out in violation of my perfect duty, and I ought to be prosecuted for this. However, the sailors may not, upon my refusal, unsheathe their cutlasses, cut me down in my house, and use my property as they please. They may not coerce me to make use of my property, but must petition me for its use, and if need be, compensate me at a fair rate.

I am sure I can use more thinking on this matter, and would welcome any comments or concerns.

*As an aside, while most of Reddit is a spectacular waste of time, there are some truly spectacular resources you can tap into if you so choose. I tend to frequent the subforums on philosophy, Stoicism, history, and Ancient Greek. The help I have received there for my questions and my arguments, from intelligent and skilled people, has been invaluable.

Wrestling with the Non-Aggression Principle

There is a story, likely apocryphal, concerning the great rabbi Hillel. When Hillel was learning in his academy, a gentile came to him and demanded that he teach him the entirety of the Torah. To make things harder, he would have to do this while the gentile was standing on one foot. If Hillel could achieve this feat, the gentile would convert to Judaism. Hillel was unfazed: “Don’t do unto others what you would not have done unto you.” The simplicity of the principle is attractive, and its validity is easily defensible. For example, I don’t want my employer to withhold my salary from me, so if I find myself in the role of a boss, I will not keep my employees from their rightful salaries.

However, it omits much of the Torah. Many of the commandments are not just “thou shalt not…” but also “thou shalt”: honor thy mother and thy father, remember the Sabbath day and keep it holy, stone your son if he is unruly, and so on and so forth. They are positive rather than negative commandments, enjoining action rather than prohibiting it. Furthermore, as a principle it elides many of the positive duties that are necessary to the functioning of a civilized polity. For example, if I were drowning in a swimming pool, I would not want the lifeguard to come to the edge of the pool, look at me floundering, and laugh. Thus I too would not laugh at a drowning person. But if I am drowning, I don’t want the lifeguard to just refrain from laughing at me. I also want him to pull my sorry ass out of the water.

This thought experiment can be reconfigured. I can say that, if I were drowning in a swimming pool, I would not want the lifeguard to not pull me out of the water. If I were put in the role of the lifeguard, I would then not not pull the drowning person out of the water. Seems okay, right? It works grammatically, but examine the drastic difference in nature between the two actions. To not laugh is to refrain from doing something, laughing. To not render assistance is to not do whatever steps are necessary to give aid, and so consists of doing precisely nothing. At best, because human beings can never not be doing something merely by virtue of being alive, it consists in just standing around. Because negating nothing also results in nothing, then to not not render assistance implies absolutely nothing. If I am being charitable and declare that to not render assistance means standing around, then to not not do this would mean to not stand around. But that is not descriptive of anything – the lifeguard could very well order a pizza instead. Thus we come to the central problem: that the lifeguard and I should refrain from laughter does not imply that we should also offer assistance, i.e. a positive action cannot be derived from a negative prohibition.

That this principle cannot account for all the actions required of a moral agent is damning to Hillel’s account of Judaism, but not to Judaism as a whole. After all, we have the moral axiom “do unto others, as you would have done unto you” as well. Returning to the example of the drowning swimmer, if I were he, then I would want the lifeguard to save me. That is, I would not want the lifeguard to just refrain from harming me, but to actively help me too. If I found myself in the role of lifeguard, then I would remember this reflection, and save the life of a drowning person. I demand a positive action from someone in the role of lifeguard, and so I render the same positive action when I am put into the same role. We thus have an equilibrium, where negative rights to life and positive duties to protect life are both upheld.

Although Hillel’s “silver rule” is a good principle to adhere to, it cannot be foundational, because it cannot do all the work that a complete moral system is required to do. As I thought about this example, my mind then roved on to something different, but related: the Non-Aggression Principle, or NAP, that is considered foundational for (at least legal) ethics in the Rothbardian strand of libertarian thought. The simplest formulation of this principle is that aggression should never be initiated against another human being or his property and livelihood, except to prevent force or fraud, or in self-defense. Professor Matt Zwolinski defines it as a principle which

“holds that aggression against the person or property of others is always wrong, where aggression is defined narrowly in terms of the use or threat of physical violence.”

A competing definition from The Ludwig von Mises Institute defines it as:

“an ethical stance which asserts that “aggression” is inherently illegitimate. “Aggression” is defined as the “initiation” of physical force against persons or property, the threat of such, or fraud upon persons or their property”

There is, of course, a clear difference between physical force and physical violence, though some verbal gymnastics may be necessary to tease out the boundaries. Throughout his article I will be using Zwolinski’s definition, though I may take up the latter at some later time.

The justification for extending the NAP from persons to their property is derived from the analogy of self-ownership: if I own my self, then I also own those things that my self produces by extension. It also comes from John Locke’s homesteading principle, viz. “mixing of labor with an unowned resource makes that resource part of one’s self. Subsequent exchange of such property (e.g. sale, rental) simply transfers this right. Hence, to aggress against someone’s property is to aggress against the individual. As for freedom of contract, the right of self-ownership is held to imply freedom of action in the absence of aggression (e.g. in the absence of false or duress contracts, and the absence of contracts stipulating aggression against third-parties).”

Finally, if the NAP is granted to apply to both persons and their property, “then the non-aggression principle is held by its supporters to lead to the rejection of theft, vandalism, assault, fraud, pollution and the concept of victimless crimes.”

There is a lot to disagree with here. I could, for example, take issue with the very concept of the “self” and the “I” which owns it, but as Kant rightly stated, freedom is a necessary postulate for morality, and so even if it cannot be explained, it must be maintained. Such an enquiry is fundamentally necessary to determine whether such a “self” could own anything, after all. Furthermore, I could certainly disagree with the extension of ownership of the self to ownership of things with which that the self interacts. And so on and so forth. Instead of these objections, I have a simpler mission with this post. I want to start an enquiry into the suitability of the NAP as a legal/ethical, as well as a generally moral, principle. Thus I will ask two questions:

  1. Is the NAP a suitable foundational principle for ethics?
  2. Is the NAP a suitable foundational principle for the law?

The NAP as a Moral Principle

Because the NAP considers aggression to be ceteris paribus illegitimate, it has the force of an unequivocal moral law. If I covet my neighbor’s cow and I steal her, that is aggression against him, and thus wrong. If I want to institute a tax to pay for a town library, that is theft of my neighbor’s funds, a form of aggression, and therefore illegitimate. If I want to protest the new Walmart in the neighborhood by defacing the storefront with a lewd graffito, that is damaging the property of the shareholders of Walmart, and thus wrong. However, if a man pulls a knife on you in a dark alleyway, you are justified to pull a gun on him, in protection of your life and your property. If a sharper tries to extort money from you in a Ponzi scheme, you are justified to bring down the police on his head, in protection of your property against fraud. I can continue to come up with examples, but the point should be clear: any initiation of aggression is illegitimate, unless it is in response to an act of aggression initiated first by someone else, whether through force or fraud.

This is a very simple, intuitive, and easy-to-remember moral axiom. Because of this, it is overly broad, and thus overly thin. It cannot account for all the moral intuitions people have, and at times is radically opposed to a commonplace sense of right. While these reasons are not sufficient to dismiss it entirely, they are enough to question its suitability as a foundational principle of general morality for libertarianism. The NAP, by focusing only on the negative duty to avoid harm, ignores a whole swath of other important moral considerations: whether the costs of an action are commensurate with its reward; duties to help or to not harm; the roles involved with or implied by duties; and the nature of the human being, whether such a nature implies positive, or merely negative, duties.

The benefit of the NAP is that it prohibits doing all action that is clearly, intuitively, wrong. Murder, rape, and theft are always wrong, regardless of whatever gains may accrue from them. While any right thinking person will grant the truth of this, these same people may not notice that all these cases are acts of “doing” – that is, acts that a single moral agent, out of his own free will, elects to do. However, many moral dilemmas do not depend on what an agent actually does, but more importantly, what he allows to happen. This is where the ethical principle of doing and allowing comes in. There are some actions that on principle a moral agent cannot do, but that he may be allowed to let happen. For example, a moral agent cannot run over a person stranded in the road to save another person stranded atop an active volcano, but that same agent can allow one person to drown in order to save five other drowning people.

I will use a thought experiment to illustrate this (which I stole from some obscure paper on moral philosophy I read in undergrad). You have an elderly neighbor named Janet. Over several years, an arrangement developed between you and Janet that, during wintertime, you would gather firewood and stoke her wood-burning stove, the only source of heat in her home. You never established a formal contract with Janet, nor have you ever spoken about it, but there is a tacit understanding between both of you; you saw a need, and you provided. It is wintertime, and you receive a call that your best friend was hit by a car and is dying in a hospital three hundred miles away. You have the option of staying to help Janet, or going to see your friend before he/she dies. There is no one to help Janet except you. If you leave, Janet will likely die from the cold. What should you do?

Under NAP, there is no direction as to which option to choose. There are no legal, economic, or contractual obligations either to Janet, or to your friend. Not aiding Janet is not the positive action of initiating force, and so it is not prohibited by NAP. Not going to see your friend is also not an initiation of force, and so is equally permissible. What you do in this instance is entirely dependent on what would be, under the NAP, non-moral considerations:

  1. Janet requires your help, but Janet does not hold your affection in a way that is more than benignly charitable
  2. Your friend does not require your help, but does hold your affection in a very deep way.
  3. Seeing your friend before he/she dies is important to you, as it will be the last time you will ever see him/her

There is no such thing as a moral duty to help embedded in the NAP, and so your only recourse is your own sense of right and wrong, and your own motivations. If your sense of right and wrong is based on NAP, there is nothing wrong with not helping Janet, and because your attachment to your friend is stronger, you will leave to see him/her and allow Janet to die from the cold. If your sense of right and wrong incorporates the NAP, but also other moral ideas such as positive duties, you will likely stay to help Janet stoke her fire.

The main problem with NAP is that it is entirely negative: it prevents harm by making all actions subject to the prohibition on initiatory force. However, in doing so it neglects the necessity of positive duties. Here, by not helping Janet stoke her fireplace, you are not actively initiating force against her. Really, you are doing nothing at all. You are not breaking a formal arrangement ratified by mutual oaths or by contract, and thus infringing on her rights to the labor you are contracted to provide. Tacit agreements are not substantial enough to constitute a violation of NAP, as that would make any sort of casual arrangement equivalent with an initiation of force. If I have an arrangement to play a pick up soccer game with my friends every week, and one week I decide to play chess with grandpa and neglect to inform them, I can certainly be called inconsiderate, but it would be patently absurd to say that my lack of consideration is the same as initiating force, or participating in fraud. My friends do not have a legal or moral right to my presence at the game, as they might if I were a professional player contracted with a team. My labor is not part of any binding agreement, it remains mine, and so I may dispense with it as I see fit. If this is true at a trivial level for tacit arrangements, on principle it is true at a more substantial level, when there are real consequences: if violating my tacit agreement with my friends is not an initiation of force, neither is violating your tacit agreement with Janet.

However, by failing to gather wood, place it in her stove, kindle and maintain it, and make sure she is warm, you are not killing her yourself, but you are allowing her to die through your negligence. By taking on the task of tending the fire, and making Janet dependent on your labor for her survival, you have tied her fate to your willingness to assist her. You have taken on a positive duty to help her, by virtue of her helplessness and your absolute power over her life or death. Acting as if NAP is foundational precludes moral duties, but this also means it precludes the roles that presuppose all duties. A fireman has a duty to put out fires because he is in that role, and a priest has a duty to shepherd his flock by virtue of his role. In this case, you are not in the role of a caregiver, and so she does not exert an economic or contractual claim on your exercise of labor. However, you are in the role of a neighbor or a friend, and while she has no economic claim on you, she certainly has a moral one. In the same way that a child, by its very helplessness, exerts a moral claim on its parents, Janet exerts a moral claim on you or anyone that is integral for her survival.

The NAP as a Legal Principle

Some libertarians may cry out at this point that the NAP was never intended as a general principle of morality, but more narrowly, as the basis of legal ethics. This is the stance of Rothbard and Hoppe, and while it may get them out of this last dilemma I conjured up, it also may not. You have no legal obligation to help Janet, and so you could not be prosecuted for leaving her (literally) out in the cold under a legal system founded on NAP, but you certainly would be morally stained. The presumption is that legal coercion is not required, for even if the law did not constrain you to act in the right way, your own personal concerns would: your private morality (guilt), or the views and sanction of the community (shame).

This presumption takes an overly rosy view of human nature. At times coercion is necessary to forestall a greater harm by the imposition of a smaller one. If I am drowning, it is a reasonable expectation that those around me will save me, and most moral people would. But I cannot count on other people being moral, so there must be the added threat that, if they do not save me, they will be punished in some way. As Zwolinski writes, “taken to its consistent extreme, as Murray Rothbard took it, the NAP implies that there is nothing wrong with allowing your three year-old son to starve to death, so long as you do not forcibly prevent him from obtaining food on his own. Or, at least, it implies that it would be wrong for others to, say, trespass on your property in order to give the child you’re deliberately starving a piece of bread. This, I think, is a fairly devastating reductio of the view that positive duties may never be coercively enforced. That it was Rothbard himself who presented the reductio, without, apparently, realizing the absurdity into which he had walked, rather boggles the mind.”

I will look at some thought experiments to further elucidate the stupidity of using the NAP as a foundational principle of the law.

1. The judge and the mob

A judge is adjudicating a particularly contentious murder trial. In the course of the proceedings, he receives irrefutable evidence that the defendant is innocent, and so he moves to dismiss the case. A mob forms outside the courthouse and kidnaps five innocent people, threatening to murder all of them if the judge does not hand over the defendant. What should he do?

Analyzing this in terms of the NAP, the judge may or may not have grounds to give up the defendant in the case. On one hand, to give him up would be to condemn him to death, a clear instance of initiating aggression, and thus illegitimate. On the other, merely allowing him to be killed is not in itself a clear case of physical aggression. Indeed, the judge may only have to open the courthouse door and let the mob do the rest. In what way is opening a door a clear case of aggression? Zwolinski writes on this as well:

“The NAP clearly implies that it’s wrong for me to shoot you in the head. But, to borrow an example from David Friedman, what if I merely run the risk of shooting you by putting one bullet in a six-shot revolver, spinning the cylinder, aiming it at your head, and squeezing the trigger? What if it is not one bullet but five? Of course, almost everything we do imposes some risk of harm on innocent persons. We run this risk when we drive on the highway (what if we suffer a heart attack, or become distracted), or when we fly airplanes over populated areas. Most of us think that some of these risks are justifiable, while others are not, and that the difference between them has something to do with the size and likelihood of the risked harm, the importance of the risky activity, and the availability and cost of less risky activities. But considerations like this carry zero weight in the NAP’s absolute prohibition on aggression. That principle seems compatible with only two possible rules: either all risks are permissible (because they are not really aggression until they actually result in a harm), or none are (because they are). And neither of these seems sensible.”

It should be clear that we are dealing with the first rule here, viz. “all risks are permissible (because they are not really aggression until they actually result in a harm),” which as he notes, is not a sensible rule to have.

The five victims do not deserve to die, certainly, but that is out of the judge’s hands. He cannot ensure their safety except through the violation of the defendant’s right to life, assuming such a right exists. And, he does not know if the mob will make good on their promise. Perhaps they will lynch the defendant and kill the other five innocents. Perhaps if he calls their bluff and keeps the defendant, they will not kill the innocents at all. Perhaps Jesus will come down and the Resurrection will occur. If he is a gambler, the judge will clearly see where the odds lie, as the only thing really up to him is what he does with the defendant – every other outcome is out of his direct control.

Sacrificing one to save five is a superior choice in terms of the immediate material consequences. Five human lives will be spared at the cost of one. To refrain from handing over the defendant would be equivalent to condemning five people to death, and so the judge ought to deliver him to the mob, in order to save more lives. However, it is also clear that acquiescing to the mob involves a lot more than six civilians and a judge. Showing the mob that it can buy the decisions of the judiciary through coercion is corrosive to the very idea of justice, which is based on the impartial weighing of evidence and not the clamor of the crowd. Valuing human life on a material scale is corrosive to the idea of the inherent dignity and non-instrumental value of a human being, which is the underlying basis of any justifiable ethics. Finally, giving up a man to the mob is the same as intentionally murdering him, while allowing the mob to kill five people is a decision that is out of the judge’s hands, and entirely up to the mob which controls the situation. To legitimize such a sacrifice is to legitimize the act of murder when it is demanded by a majority, perhaps the most corrosive idea of all. If violating the right to life and liberty for a case of one versus five is wrong, it is equally wrong if it is one versus one, or one versus one million.

2. The NAP is not consistent.

You may notice in the definition of the NAP that “fraud against persons or property” seems tacked on to the prohibition of initiation of physical aggression against persons and their property. The underlying logic is that physical aggression is morally equivalent with fraud, which is also some form of aggression. It is more of an equivocation, though, as the physical aggression prohibited under NAP cannot be equivalent with fraud. Physical aggression, such as striking another person, is fundamentally different literally and conceptually from telling some gullible schmuck that the ring I am selling is genuine gold, when in reality it is brass plated with some low quality gold alloy. If you believe in the principle of self-ownership, and thus ownership of the possessions of the self, then you may say that, yes! I am aggressing against the schmuck by harming his personal property. But even so, the aggression against property versus against a man are fundamentally different, because they are fundamentally different things, connected only by a tenuous abstraction. It is this abstraction that allows the ringbearer to initiate force against me, in order to reclaim his lost assets taken through fraud, just as it permits another man to defend himself after being struck. However, notice the difference: the first case is an initiation of physical violence, because fraud is not violence, while the second case is retaliation against violence initiated previously.

Prohibiting harm of a person’s property is certainly important, but it is not equivalent with harm to the person himself, and it is patently absurd to argue that these two situations are symmetrical. The legitimation of physical violence because of fraud against a man’s property also holds for the NAP in any case of aggression against property. Zwolinski again:

“Suppose A is walking across an empty field, when B jumps out of the bushes and clubs A on the head. It certainly looks like B is aggressing against A in this case. But on the libertarian view, whether this is so depends entirely on the relevant property rights – specifically, who owns the field. If it’s B’s field, and A was crossing it without B’s consent, then A was the one who was actually aggressing against B.”

This leads to the ultimate reductio: violence is not the fundamental concern of the NAP, for violence against persons may or may not be legitimate depending on the circumstances of who and whom. But, violence against property is always illegitimate, because property, unlike the man, is always an unalloyed good. Thus, the NAP places the protection of property above the protection of a man himself, a heinous conflation of moral and legal goods with mere material concerns. The marvellous Kant would be rolling in his grave if he saw such foolishness accepted as gospel. As Zwolinski says, “…the NAP’s focus on “aggression” and “violence” is at best superfluous, and at worst misleading. It is the enforcement of property rights, not the prohibition of aggression, that is fundamental to libertarianism.”


Even given these problems, I do not think the NAP should be abandoned entirely, as does Zwolinski. It may be broad, and incoherent, but those problems are obviated by:

  1. Denying its status as foundational for either morality or law
  2. Denying the idiotic assertion that fraud merits physical violence
  3. Affirming other moral and legal guidelines that are superior to and/or complement it.

The idea that it serves as an absolute moral principle is misguided, and it should be replaced with the idea that it is a guideline for action, not a foundation for it. Further, its use as a foundational principle for the law is also absurd, and must be accompanied by more, and better, principles to create a comprehensive body of law. The Aristotelian virtues come to mind here. Courage is the virtue of battle, but courage alone does not make a good warrior. The prudence to know when to be courageous, when to storm the barricades and when to retreat, is more valuable. For courage, when puffed up by the vehemence of war, becomes rashness, and when dampened by fear, becomes cowardice. There is a mean between them, and it is the true virtue of the good warrior that he knows where this mean lies.

For morality, instead of throwing the baby out with the bathwater, we must affirm the usefulness of the NAP, while complementing it with other principles that satisfactorily map onto our moral intuitions and maintain our moral principles. Instead of a single, overriding absolutist principle, we ought to have a constellation of principles that inform our moral behavior. For the law, a codified respect of both negative and positive rights and duties is necessary. I welcome any comments and criticism.

From the Comments: Islam and Islamism

Matthew riffs off of my recent post on imperialism:

I am far too lazy at present to read the links you embedded in this article, so I will shoulder the lazy man’s burden, and provide some simple anecdotes.

A very common reaction is to blame Islam itself for the problems Islamists cause in the West, and in their own countries. I have never opened the Koran, and I have only cursorily read the statements of Islamist groups such as Hamas. I cannot honestly speak to whether Islam is at fault in toto, because I know too little about Islam’s tenets to deduce a causal relationship between Islamist extremism and the creed they espouse. What I have been noticing, however, in my brief travels in the Islamic world (I am currently in Meknes, Morocco) is the difference in practice between what I will call “media Muslims” (the straw men the media set up as representative of all Muslims) and the real, flesh and blood Muslims you meet in your every day encounters. I have met pious Muslims, who pray five times a day, and have had theological discussions over the differences between Judaism and Islam. I have not hidden my Judaism, as many Jews do out of fear for their lives – misplaced oftentimes, I would say – and have had no problems. I have met young Muslims who eat pork and drink alcohol and don’t give a jot about Allah or Muhammad. I have tried to flirt with Muslim girls and failed, probably because my only Berber words are “yaaah” (yes) and “oho” (no).

There is a very large pressure in culture and in the media to reduce everything to social forces. We must fear “Islam,” and “Communism,” and “Terror,” without considering that all of these social forces are composed of many individuals, with different ideals, and different means of pursuing them. Islam is, like everything else, a pluralistic social movement. There is Wahhabism on one end, and cultural Islam on the other, and many people fall in between. So, I do not think Islam can be blamed for the West’s problems with Muslims. A particular strain of Islam, adhered to by a particular type of individual, is one factor. Western meddling and overt racism is another.

The rest of the ‘comments’ thread is, of course, well worth the read too. I am not much of a bragger but, as I’ve repeated on here many times, the ‘comments’ threads at NOL are some of the best on the web. I look forward to Matthew’s posts teasing out what it means to be Western.

Also, Matthew, with Moroccan girls you have to feign ignorance and let them believe that they are doing the hunting and that you are the prey. (Let us know how it goes, of course.)

New Issue of Econ Journal Watch: Does Economics Need an Infusion of Religious or Quasi-Religious Formulations?

The new issue of Econ Journal Watch is out and EJW has teamed up with the Acton Institute to feature ‘religion and economics’ as the topic for a symposium.

As some of you may know, my fellow Editor-in-Chief Fred Foldvary is an editor for the journal, and Warren is the math reader, so this project holds a special place here at NOL. I just wish they’d be a little less humble about their endeavors elsewhere and share this type of stuff themselves (this humility is a recurring problem in the libertarian quadrant of the blogopshere)!

At any rate, here is the lineup:

The Prologue to the symposium suggests that mainstream economics has unduly flattened economic issues down to certain modes of thought (such as ‘Max U’); it suggests that economics needs enrichment by formulations that have religious or quasi-religious overtones.

Robin Klay helps to set the stage with her exploration“Where Do Economists of Faith Hang Out? Their Journals and Associations, plus Luminaries Among Them.”

Seventeen response essays are contributed by authors representing a broad range of religious traditions and ideological outlooks:

Pavel Chalupníček:
From an Individual to a Person: What Economics Can Learn from Theology About Human Beings

Victor V. Claar:
Joyful Economics

Charles M. A. Clark:
Where There Is No Vision, Economists Will Perish

Ross B. Emmett:
Economics Is Not All of Life

Daniel K. Finn:
Philosophy, Not Theology, Is the Key for Economics: A Catholic Perspective

David George:
Moving from the Empirically Testable to the Merely Plausible: How Religion and Moral Philosophy Can Broaden Economics

Jayati Ghosh:
Notes of an Atheist on Economics and Religion

M. Kabir Hassan and William J. Hippler, III:
Entrepreneurship and Islam: An Overview

Mary Hirschfeld:
On the Relationship Between Finite and Infinite Goods, Or: How to Avoid Flattening

Abbas Mirakhor:
The Starry Heavens Above and the Moral Law Within: On the Flatness of Economics

Andrew P. Morriss:
On the Usefulness of a Flat Economics to the World of Faith

Edd Noell:
What Has Jerusalem to Do with Chicago (or Cambridge)? Why Economics Needs an Infusion of Religious Formulations

Eric B. Rasmusen:
Maximization Is Fine—But Based on What Assumptions?

Rupert Read and Nassim Nicholas Taleb:
Religion, Heuristics, and Intergenerational Risk Management

Russell Roberts:
Sympathy for Homo Religiosus

A. M. C. Waterman:
Can ‘Religion’ Enrich ‘Economics’?

Andrew M. Yuengert:
Sin, and the Economics of ‘Sin’

Not too shabby, eh? I’ll admit upfront I haven’t been able to read any of the articles yet, but once I find some work out here in Austin I’ll be able to patch together a schedule that’ll allow for a little leisure. You can always download the entire issue, too (pdf). Econ Journal Watch is an important project that is dedicated to exploring and criticizing the underlying assumptions of the discipline of economics, but it is done in a way that is classy, professional, and informative.